Our law firm has represented employers and employees in many employment and personnel disputes. Many disputes develop over discrimination, actual and perceived. Many forms of “discrimination” are actually not unlawful, however. Therefore, it is important for employers and employees to understand what the law forbids. Our firm has much experience representing employers and employees in a variety of types of litigation involving alleged discrimination.
Atlanta and Augusta Employment Law Firm
While most businesses and employees know in a general sense that Title VII cannot be violated, what specific types of discrimination implicate the statute range from obvious to very subtle. Even the well-known categories of Title VII discrimination can be broken down into even more sub-groups that many employers may be unaware are labeled. Some examples of discrimination that can implicate Title VII:
- Discrimination based on race and color
- Discrimination based on national origin
- Discrimination based on language and accent
- Discrimination based on English fluency
- Discrimination based on foreign accent
- Discrimination by use of English-Only rules
- Discrimination based on citizenship status
Discrimination need not only be a direct and blatant act of unfair treatment. Preferential treatment of an employee not in a protected status over one that is qualifies as disparate treatment that may trigger Title VII’s applicability. Also, an employer can be found liable for discrimination even if they had no intent to discriminate but the employer’s policy adversely affects a protected group differently from a non-protected one. An example of a subtle act of discrimination can be shown through the category of race and color. Employers may consider it obvious that you cannot discriminate between a member of one race and a member of a different race. However, if two employees are of the same race but differ in skin hue and are treated different because of it, an employee can still claim discrimination in this protected classification.
Discrimination based on national origin contains many sub-categories that constitute the same classification for Title VII purposes. According to the Equal Employment Opportunity Commission (EEOC), discrimination based on an employee’s or his ancestors’ place of origin is national-origin discrimination. In general, employers also cannot discriminate against employees or applicants based on their citizenship status, except where required for compliance with government laws or contracts. However, this does not prevent the employer from requiring proof of eligibility to work including their status if appropriate for the request. The national-origin discrimination definition also covers discrimination based on the individual carrying physical, cultural or linguistic characteristics of that national origin group or ethnic group.
Employer policies or decisions geared to linguistic characteristics (e.g., language fluency, foreign accent, and English-only rules) are tricky because these characteristics may fall under national-origin discrimination. In terms of English-fluency policies, the courts have generally ruled in favor of employers because they are substantially job-related and necessary for business operations. Employers seeking applicants with foreign language fluency are typically compliant with Title VII when the applicants sought are to meet the needs of the customer base of the business. Employers should be aware that the mere existence of a foreign accent does not constitute English deficiency. An employee’s accent would have to clearly interfere with effective communication and that communication would have to be necessary for them to perform their job duties in order for an employment decision to be based off of it. This would be the case in terms of telecommunications, teaching, or other positions where effective oral communication is required.
In the case of English-only rules being adopted for employees, the employer must be careful to ensure that the policy is being applied in a non-discriminatory manner and that it is being adopted specifically for business-related concerns. Prohibiting only specific languages instead of all foreign languages or prohibiting foreign languages even when the employees are not actively working (such as breaks) are definite red flags.